SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 9, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from judgments of the District Court of Suffolk County, First District (William G. Ford, J.), rendered August 12, 2009. The judgments convicted defendant, upon a jury verdict, of driving while intoxicated per se and driving while intoxicated. The appeal from the judgments brings up for review orders of the same court (1) dated January 20, 2006 denying the branch of defendant's motion seeking to dismiss the information charging defendant with driving while intoxicated per se on the ground that that information is legally insufficient, and (2) dated August 3, 2007 and March 5, 2009, respectively, denying the branch of defendant's motions seeking to dismiss the informations on statutory speedy trial grounds.
People v Bonner (Lisa)
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 9, 2011
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ
ORDERED that the judgment convicting defendant of driving while intoxicated per se is reversed, on the law, and the information charging this offense is dismissed; and it is further, ORDERED that the judgment convicting defendant of driving while intoxicated is affirmed.
Defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 ) and driving while intoxicated (Vehicle and Traffic Law § 1192 ). She moved to dismiss the information charging her with driving while intoxicated per se on the ground that it was legally insufficient. The District Court denied the motion. Defendant subsequently moved to dismiss both informations on the ground that she had been denied her statutory right to a speedy trial. The District Court also denied this motion.
During the jury trial, defendant objected to the admission of the breathalyzer testing device simulator solution certificate on the ground that the admission of this certificate without direct testimony from the analyst violated the Confrontation Clause of the United States Constitution. Defendant also objected, on the ground of an absence of foundation, to the admission of a printout card. On appeal from the conviction by the jury, defendant raises the same issues, adding a claim of failure to properly charge the jury.
A person is guilty of driving while intoxicated per se (Vehicle and Traffic Law § 1192 ) when that person operates a motor vehicle while having .08 of one per centum or more by weight of alcohol in his or her blood as shown by chemical analysis of such person's breath, blood, urine or saliva.
The information charging defendant with driving while intoxicated per se was jurisdictionally defective. In order to be facially sufficient, an information together with any supporting deposition "accompanying or filed in connection with an information" (CPL 100.20), must allege, among other things, non-hearsay facts of an evidentiary nature establishing, if true, each element of the offense charged and the defendant's commission thereof (CPL 100.15 ; 100.40 ; see People v Kalin, 12 NY3d 225, 228-229 ; People v Jones, 9 NY3d 259, 261 ; People v Allen, 92 NY2d 378, 385 ; People v Dumas, 68 NY2d 729, 731 ). The factual allegations in an information must give a defendant sufficient notice to prepare a defense and prevent her from being tried twice (see People v Casey, 95 NY2d 354, 360 ). Defendant's motion to dismiss the information charging this offense should have been granted. The information did not set forth non-hearsay allegations which, if true, established every element, and defendant's commission thereof, of the offense charged (CPL 100.15 ; 100.40  [c]). While Police Officer Montemurro alleged defendant's breath test result of .16% blood alcohol content, he did not state that he had administered the test, or observed the test being conducted, the basis for the assertion that the test registered a .16% blood alcohol level. To the extent that the Officer relied upon an Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result, no such card was annexed to the information. Moreover, while a printout card was contained in the court file, it included the signature of another officer who had conducted the breathalyzer test, and it did not attest to any personal knowledge regarding the test performed or the results of the test. It was not properly verified, and it failed to contain non-hearsay factual allegations of an evidentiary character (CPL 100.20, 100.30).
Contrary to defendant's contention, her constitutional right to confront witnesses was not violated by the admission of the certificate regarding the simulator solution for the Intoxilyzer 5000 device since it is not testimonial within the contemplation of Crawford v Washington (541 US 36 ) (see People v Brown, 13 NY3d 332 ; People v Damato, 79 AD3d 160 ; People v Thompson, 70 AD3d 866 ; People v Lent, 29 Misc 3d 14 [App Term, 9th & 10th Jud Dists 2010]).
While the printout card prepared by the officer prior to administering the breath test, admitted into evidence, was testimonial for purposes of the Confrontation Clause (see generally Crawford, 541 US at 68; People v Brown,13 NY3d, 332, 339-340 ), this issue is moot since the officer testified at trial and defendant was afforded the opportunity to cross-examine the witness.
We reject defendant's contention that she was denied her statutory right to a speedy trial pursuant to CPL 30.30 (1) (b). The periods of delay attributable to adjournments consented to or requested by the defense (see CPL 30.30  [b]; People v Worley, 66 NY2d 523 ), the postreadiness delays attributable to court congestion (see People v Figueroa, 15 AD3d 914 ), the reasonable period of delay attributable to the People in responding to defendant's motions (see People v Holden, 260 AD2d 233 ), and the period of time defendant's motions were under consideration by the court (see CPL 30.30  [a]; People v Moorhead, 61 NY2d 851 ) are not chargeable to the People and did not exceed the permitted 90-day time limit (see CPL 30.30  [b]).
Defendant's remaining contentions are either unpreserved for appellate review (see CPL 470.05 ) or without merit.
Accordingly, the judgment convicting defendant of driving while intoxicated (Vehicle and Traffic Law § 1192 ) is affirmed.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: May 09, 2011
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